Volume 11 — New Jersey Law Reports

<p>1. A sale and conveyance by executors by virtue of an order of Lbe Orphans’ Court, for the payment of debts of the testator, passes to and vests in the purchaser such estate, and such estate only, as the heir or devisee has in the lands at the time of the making of the order for sale.</p> <p>2. But since the act of the 12th of December, 1825, a sale under an order of the Orphans’ Court, obtained within one year after the death of the testator or intestate, will vest in the purchaser such an estate as the testator or intestate died seized of, or entitled to; notwithstanding any alienation or incumbrance thereof made or attempted to be made by the heir or devisee.</p> <p>3. From the passing of the act of November 2d, 1743, until the year 1799, the sheriff by virtue of an execution against executors and administrators made sale not only of the goods and chattels of the decedent but of the real estate also whereof he died seized.</p>

IN DOWER. This case was tried before the Chief Justice at the Salem Circuit in June, 1827, and the following state of the case was returned by him for the opinion of the Supreme Court.

<p>1. It is not necessary for a party suing out a certiorari to remove a judgment in an action of forcible or unlawful detainer, to enter into a recognizance according to the 4th sec. of the act to regulate the issuing of writs of certiorari in certain cases. Bev. Loads, 407.</p> <p>2. This court will not grant a rule upon a justice to compel him to send up a paper though it may have been given in evidence in the cause, if the paper belongs to one of the parties, and may be presumed to be in his possession. But the party may bo compelled to produce the paper in this court if it appears by the justice’s docket to have been given in evidence.</p>

<p>A certiorari in unlawful detainer is not to be quashed, because delivered to the justice before the render of judgment; nor because he returns different proceedings from those required.</p>

<p>The grant, or agreement, of the persons interested, which was sanctioned and ratified by the act of the legislature, passed 11th February, 1813, for the improvement of the meadows, marshes and swamps, lying within certain -prescribed bounds, in the Upper Township of Cape May, should receive a liberal interpretation, carefully seeking and supporting the substance, and yielding only to such matters of form as are essentially connected with it. .</p> <p>It was not necessary for the surveyor (appointed under the act to make the survey of the meadows, and a regular return, plat and drawing of the same) to adopt the precise language of the act in his return to tlie managers; it is sufficient to use expressions of equivalent import with those contained in the act, and which shew a substantial compliance with it.</p>

<p>If a justice of the peace enters a judgment against a defendant, and after-wards makes a conditional order that the judgment shall be opened upon the payment of costs by the defendant on a certain day ; and, notwithstanding, the defendant neglects to pay the costs on the day prescribed, the justice refuses to issue execution on the judgment, after being requested by the-plaintiff so to do, a mandamus will be granted to compel the justice to issue the execution.</p>

<p>In an action of trespass for breaking and entering the house of the plaintiff, the defendant cannot, under the plea of not guilty, give in evidence matter of justification or excuse, such as that the breaking and entry complained, of were by virtue of an execution issued out of the court for trial of small causes, against a third person ; but such matter must be pleaded specially.</p>

<p>1. If by mistake,’or other just and sufficient cause shewn to the court, an omission has taken place in a partial account exhibited in the Orphans’ Court by an administrator, such omission may be corrected and just allowance be made to the administrator in his final account.</p> <p>2. The items of the credit side of an account in the Orphans’ Court may be expressed in general terms.</p> <p>3 A charge of interest by an administrator will be viewed with caution, and the circumstances offered to sustain it will he examined with scrupulous care. But circumstances may exist which will not barely justify but commend an advance of money by the administrator and entitle him to an allowance of interest.</p> <p>4. The Orphans’ Court may make a second order for sale of real estate, the part directed to be sold by the first order being insufficient, for the payment of the debts.</p> <p>5. If the personal estate is insufficient for the payment of the debts and the administrator actually and in good faith, and under proper circumstances, advances moneys for the purpose, an order for sale may be made to reimburse him.</p> <p>6. No time is limited by the statute witliin which an order for sale is to be made. A discretion is confided to the Orphans’ Court. Each case must in some measure depend on its own circumstances.</p> <p>7. The Orphans’ Court on an application for an order for sale has no power or authority to hold plea of title, and neither an order for sale nor a sale under it, will destroy or disturb previous conveyances legally made.</p> <p>8. The administrator having himself as heir, sold and conveyed his share of the real estate, an order for sale of that share to pay a debt due him or to reimburse moneys advanced by him, ought not afterwards to be made. Being the hand both to pay, and receive, the portion of the debt which his share of the land might otherwise be chargeable with, ought to deemed extinguished.</p> <p>9. In an administration account, no allowance can be made for coni't fees, by way of the expenses of the judges, beyond the items fixed by statute. An allowance may be made for fees paid by the administrator to counsel under proper circumstances.</p>

<p>A justice of the peace has jurisdiction of an action of trespass guare clausum fregit for cutting down trees and grass growing, and digging up and removing the soil.</p> <p>The rule with respect to the justice’s jurisdiction is, when the nature of the action is such that in order to maintain it, the plaintiff must necessarily • shew on his part, whatever may be the defence set up by the defendant, something more than the pedis possessio, the mere actual occupation, and must give some evidence of title strictly so called, the action is not cognizable in -the court for the trial of small- causes, but when the plaintiff need give evidence of no more, besides the commission of the alleged trespass, than' of ■the mere possession, the action is cognizable and may proceed to judgment, unless the defendant shall interpose a plea of title and thereby, under the provision of the statute, suspend the jurisdiction of the justice.</p>

<p>A certiorari to remove an order or decree of the Orphan’s Court for the sale of land, may be allowed by a single judge of the Supreme Court at Chambers.</p> <p>The mode most convenient and most conformable to general practice is to entitle the certiorari, between the party who seeks redress as,plaintiff, and the party at whose instance the order was made as defendant.</p> <p>But a.mere mistake in the endorsement of the certiorari is not essential, and a certiorari will not be quashed because, as in this case, The State is endorsed as the plaintiff.</p>

CERTIORARI. This was a certiorari to the Court of Common Pleas of the county of Somerset, brought to reverse the judgment rendered by that court on an appeal from the judgment of a justice of the peace. The state of demand filed before the justice, was as follows : “ John A. Hall against Abraham S. Clark and John B.. Vanlieu, trading under the name, style and firm of Clark and Vanlieu. In debt.

<p>CERTIORARI.</p> <p>This was a certiorari brought by Crowell Adams to reverse •a judgment rendered against him in an action for [*85 an unlawful detainer, upon a complaint exhibited against him by Bowdevine Decker, in the words following, viz: '‘ For that whereas, by a certain written lease between the said Bowdevine Decker and Crowell Adams, bearing date the first day of April, A. D. 1825, the said Bowdevine did demise and lease unto the said Crowell Adams, the messuage, farm and tract of land on which the said Crowell resided, ■containing about one hundred and forty-six acres, situate on the Pepocoting, near the Pepocoting bridge, in the said township of Wantage, in the said county, whereof the said Bowdevine Decker then was, and now is seized of an estate ■of inheritance in feo simple, to have and to hold the said farm, messuage and tract of land, unto the said Crowell Adams, for the term of one year from the date of the said loase ; and the said Crowell Adams hath wilfully and without force, held over and unlawfully detained the possession of the said premises, from the expiration of the said term to the day of exhibiting this complaint, and still doth wilfully and without force, hold over and unlawfully detain the same from the said B. Decker, although demand of the possession of the said premises and notice in writing for the delivery thereof, to the said B. Decker, was made and given by the said B. Decker, to the said 0. Adams, to wit, on the 29th day of January, 1828, and so the said Crowell Adams is guilty of unlawful detainer of the said promises.”</p>

An action of debt had been brought before a justice of *88] the *peace, by Isaac Snedicker against George White, for $30, for the use and occupation of a shore or river bank, • of the river Delaware,… Held: used, occupied,, possessed, and enjoyed ; and being so indebted, &c.” To this declaration the defendant pleaded the general issue.

CERTIORARI. This case was the same as the preceding, except that the final decree of the Orphans’ Court bore date on the twelfth of December.

This was a certiorari directed to the Orphans’ Court of the county of Middlesex to remove a final decree of that .court, and was returnable to the last term, of the Supreme Court.

<p>This was an application for a mandamus, to be directed to the Court of Common Pleas of the county of Hunterdon, to compel them to reinstate an appeal; and came before this court, upon a state of the case agreed upon by the .attorneys of the parties; which was as follows : “ Hutchin.son had obtained a judgment against Glentworth, in an action-of trespass on the case, before a justice of the peace;. Prom,this judgment Glentworth appealed; upon the calling: of the appeal, the attorney of the appellee objected to the-appeal bond, that it did not set out the style of the action* appealed from. The bond was in the usual form except that the style of action was'not named.” The preamble-*91] *to the condition of the bond was as follows : “Whereas the above bounden P. P. Glentworth, intends to appeal to the Inferior Court of Common Pleas of the county of Hunterdon, at the next term thereof, from the judgment obtained in the court for the trial of small causes, before David Johnston, esquire, one of the justices of the peace in and for said county, by the said Hutchinson, against the said P. P. Glentworth, for the sum of sixteen dollars damages, and two dollars and sixty cents costs of suit, in a plea of' How the condition, &c.”</p> <p>The Court of Common Pleas sustained the objection to the-appeal bond, and dismissed the appeal.</p>

A judgment was entered on the 29th of November, 1825, by virtue of a warrant of attorney, and a bond bearing date on the 6th of June, 1809, conditioned for the payment of $6,446.31; and an'execution was issued, and there was endorsed on it a direction *to “Levy balance of prin- [*92 cipal and interest due November 9th, 1825, $7,174.76, besides costs.”

<p>Proof of putting a letter, containing a notice, into the post-office, directed to the opposite attorney, is not sufficient proof of the service of such notice, to found an application made in the absence of such attorney.</p>

<p>The application to the Court of Common Pleas for the appointment of surveyors to vacate a private road; the advertisements required by thestafcnta in such cases; and the return of the surveyors, should all slate the township m which the road to he vacated lies ; and if the name of the town ship is omitted in either, the proceedings will be set aside.</p>

This was a certiorari directed to the Court of Common Pleas of the county of Somerset, to remove the judgment and proceedings on an appeal from the judgment of a justice wherein… Held: used, occupied and enjoyed, and being so indebted he the said defendant in consideration thereof after-wards, to wit: on the day and year aforesaid, promised the said plaintiff as executor as aforesaid, to pay him the said *106] sum of money whenever afterwards he should *be requested.

A judgment had been entered in the term of November, 1827, in the Supreme Court, in favor of James Barrow .against Joseph M. Bispham, upon a bond, with warrant of attorney to confess judgment, given by Joseph M. Bispham to Benjamin McGinnis, conditioned for the payment of six hundred and sixty-six dollars, with interest, on or before the first day of October, in the year of our Lord one thousand eight hundred and twenty-one, and assigned by the said Benjamin McGinnis to the…

<p>Against a plurality of recognizors, there may he one writ of scire facias, one judgment, and one execution.</p> <p>If a person enter into a recognizance to appear before the Supreme Court on a certain day, then and there to stand the traverse of a certain indictment against him, abide the judgment of the court, and not depart without leave, ho cannot relieve himself from a default in not appearing before the Supremo Court at the time mentioned in the recognizance, by pleading that there was not on that day, or at any other time, either before or since that day, pending in the said Supreme Court, any indictment against him, or ■any other matter or thing pending in the said court, brought or exhibited against him, or for him to answer unto.</p> <p>A recognizance in general hinds to three things ; 1st. To appear to answer, either to a specified charge, or to such matters as may be objected2d. To stand to and abide the judgment of the court; and 3d. Not to depart without leave of the court; and each of these particulars is distinct and independent. The party is not to depart until discharged, although no indictment should be found against him, or although he be tried and found not guilty by a jury.</p>

<p>The Court of Quarter Sessions of the Peace has no authority to make an ■original order of affiliation or maintenance.</p>

<p>The provisions of Uro will furnislr tire guide, and mark out the duties of tlio executor.</p> <p>Where the testator, by his will directs the executors “ to place and keep money out upon interest, until his children shall come of age, and the inter-</p> <p>est yearly accruing thereon, to be also put out by them on interest until the same period,” it is the duty of the executors to apiiroximate as nearly to ■the directions of the will as circumstances will permit.</p> <p>Reasonable care and proper diligence are expected from executors. Watchfulness ought ever to be brought to the fulfilment of the trust. When these .qualities have been exercised, they will not be held responsible for losses which prudent management could not forsee nor avoid; nor will they be charged with gains which the like conduct on their part have not realized.</p> <p>The fundamental principle, in regard to a trustee, whether executor, or •administrator, or guardian, or in cases of an ordinary nature, is, that he .shall derive to himself no gain, benefit or advantage by the use of the trust funds. Whatever of profit may be made, or may accrue, shall belong to and become parcel of the estate.</p> <p>When a trustee uses the trust money, in trade or by loan, he is charged with interest; so if he mingles it with his own and uses it in common; so if he Suffers it to be idle when it.might have been invested.</p> <p>The executor or trustee having faithfully discharged his trust, having exercised prudent care, just activity, reasonable skill and proper diligence, should be charged with the interest he has made.</p> <p>Where the will directs the executor to place out at interest the interest which he received for the purpose of accumlation, and the executor renders no account of the disposition of the funds or what he actually did receive, he ought to be charged, as nearly as the same can be ascertained, with all ho might have made or received, in the exercise of due vigilance and exertion ; he ought to he charged with the annual interest on the principal sum; and allowing six months for receipt and investment after the manner of the civil law, he ought to be charged with interest on the annual amounts of •interest from the termination of six months after they respectively fell due, as long as the capital remained in his hands.</p>

<p>Upon a count for money had and received by S. L., administrator, and S. B. administratrix of W. B. deceased, a judgment cannot be rendered against the said S. L. and S. B., in their representative capacity.</p> <p>Neither could a judgment be rendered against them individually upon such a count.</p> <p>Such a count in a declaration is bad on’a general demurrer.</p> <p>So also is a count for money laid out and expended, to and for the use of the said S. L. as administrator, and S. B. as administratrix of W. B. dec’d.</p>

<p>If a certiorari is quashed for want of jurisdiction in this oonrt, the defendant’s attorney will he entitled to his taxed bill of costs.</p>

<p>If the appellant neglects to apply at the term next succeeding the judgment appealed from, for a rule, for the entry of the appeal, and the Court</p> <p>• of Common Pleas dismiss tlie appeal for that reason; this court will not grant- a mandamus to compel the Common Pleas to restore such appeal, notwithstanding the appellant at the term next after tlie judgment of the justice, obtained and entered a rule in tlie minutes of the court requiring the justice to certify whether an appeal bond had not been tendered to him, and an appeal bond demanded, and to send the same with the papers to the court.</p>

<p>A corporation created by the law of this state, and having its place of' business in this state, may sue out a writ of foreign attachment against its absent or non-resident debtor; and an affidavit made by the attorney of the corporation, is sufficient to authorize the issuing of such writ.</p> <p>In general, there is a manifest propriety in the making of such affidavits by the cashier or president, or one of the acting clerks of the bank ; but the agent or attorney of the bank, when he acts under the authority of the bank, and has the requisite information, is within the reason and principle of the-rule, which will allow the affidavit to be made by a cashier or clerk.</p>

<p>Parol evidence is not admissible to contradict, alter or vary, a wriiten instrument.</p> <p>Contracts are distinguished into two classes ; contracts by parol, and contracts under seal. There is no distinct class of contracts merely in writing.</p> <p>An executory agreement in writing, not under seal, may, before breach, be discharged, abandoned, or rescinded, by a subsequent unwritten agreement.</p> <p>A lease, with a scroll, or ink, or other device, affixed by way of seal, falls under the denomination of a simple or parol contract; so an endorsement on a lease, though it has a scroll by way of seal, may lawfully be rescinded by a subsequent parol agreement; and parol evidence, to shew it was so rescinded, is competent and admissible.</p>

<p>A writ of replevin must specify the goods and chattels to be replevied, or it may be quashed, even after an appearance has been entered.</p>

<p>Where there are several counts in a declaration, some of which are upon a special agreement, if the evidence offered does not support the connts upon the special agreement, the plaintiff may still recover upon a general count for use and occupation, provided the evidence offered is sufficient to establish all the points necessary to recovery in that form of action.</p> <p>Proof of a demise or special agreement unless by deed, will not prevent a recovery under the count for use and occupation.</p> <p>The attempt and failure to prove the special agreement declared on, do not always prohibit a recurrence to the count for use and occupation.</p> <p>Though the plaintiff is to receive from the defendant by way of rent, a portion of the-profits of a farm and tavern, such agreement does not constitute them partners as between themselves, so as to disable the plaintiff from suing at law.</p>

<p>When a third person applies to he made a defendant in ejectment, it is necessary for him to shew that he is the landlord or other proper person.</p>

<p>. The power of reconsideration, (after a judgment has been pronounced by the court) should be exercised in extraordinary cases only, and with the utmost caution and circumspection, especially when not suggested by the court, but sought by the party against whom the decision has been made; and when so sought, should never be heard without full opportunity to the other party to resist.</p> <p>A notice or motion to reconsider an appeal after judgment, given to the counsel of the appellant, after the appellant had left the court, is a nugatory notice.</p> <p>On appeals, there is no regular substitution of an attorney in the place o the party, so as to give or receive notices especially after judgment has been rendered.</p>

<p>If an alteration appears to have been made in a material part of the appeal bond, which is not noted on the bond, the Court of Common Pleas may rightly dismiss the appeal.</p> <p>Whether such alteration does or does not appear to have been so made, is a question of fact for the Court of Common Pleas to decide upon inspection-If the subscribing witness to the bond is present in court at the time the motion to dismiss the appeal is made, he may subjoin to the attestation, a note, that the alteration was made before the execution of.the bond.</p>

<p>A book of accounts exhibiting no mutual course of dealings between the parties, but containing a single entry or charge of cash lent, is inadmissible-evidence to sustain a demand for money lent and advanced.</p>

A promissory note at ninety days for sixty dollars, dated 29th January, 1819, drawn by Matthias Prest in favor of and endorsed by David Mersereau, was discounted at the bank of New Brunswick, for the benefit of Prest. When due it was protested for non-payment and notice given to the endorser.

<p>Upon adjudging an appeal bond to be defective, tbe Court of Common Pleas ought to allow the appellant to file another bond witli good security.</p>

<p>A defendant may be held to bail in an action brought to recover a penalty under the 7th section of the supplementary act of November 1822, for the regulation of fisheries in the river Delaware.</p> <p>A judge’s order for bail is not necessary in such action. The making and filing an affidavit of 'the cause of action in the clerk’s office of the court out of which the writ is to issue according to the act regulating • bail in civil actions is sufficient.</p> <p>A capias issued without an affidavit of the cause of action having been filed, may be quashed.</p>

<p>Judgment by default in ejectment having been obtained and execution issued, the tenant in possession was dispossessed, but the judgment and execution being afterwards set aside, he was restored to the possession by writ of restitution. It was held that the tenant might maintain trespass guare clausum fregit for an intermediate injury to the premises against the lessor of the plaintiff and others acting under him, but not against a stranger who came into possession bona fide and by title from the lessor.</p>

This case came before the court on a writ of error to the -Court of Oyer and Terminer and General Gaol Delivery of the county of Sussex. In order to present distinctly the -questions which were discussed and decided, and are important and interesting, the reporter has deemed it advisable to give at large the record of the judgment as returned with the writ of .error. State of New Jersey, Sussex county, ss.

<p>A sheriff cannot, maintain trover for goods by virtue of a fieri facías, and .a levy thereon, without he has made a particular inventory of the goods, or lias taken actual possession of them.</p> <p>A general levy endorsed upon the hack of the writ, as follows: “January .26, 1824, levied on the goods and chattels, lands and tenements of the defendant, subject to incumbrances, to the value of $5, which remain in my hands unsold,” is insufficient.</p> <p>The requisites of a good levy, in all ordinary cases, are: 1st. That the officer should see, the goods and have them in his power. Per Dbake, justice. (But quero of this, see the opinion of Justice Pob.d, contra).</p> <p>2d. That he should, in addition to this, do some act demonstrating his intention, from that time forward, to appropriate them in obedience to the command of the writ.</p>

CERTIORARI. The following was the state of the case. “ In the above cases the plaintiff in the court below having recovered damages for trespasses committed on his land by the defendants, who claim a right to enter on said land as agents or workmen of the Morris Canal Company. “ It is agreed that the question to be submitted for the consideration of the court be, whether the said company have a right, by their agents and workmen, to enter on the land of the plaintiff below,…

<p>An affidavit of the attorney in the cause, stating that he was not acquainted with A. G. (who had been offered as a witness on the trial and rejected because he was special bail for the defendant) and had no idea of his being, the person named as special bail, and that the said A. G. was in his opinion a material witness, does not disclose that kind of surprize which is made the-foundation of a new trial.</p>

<p>Ann Smith devised to John Smith a plantation and tract of woodland, during his natural life, and after his death, to such of the lawful issue of the body of the said John Smith, as should arrive to the age of twenty-one years, and to the survivor of such issue; provided that the said John Smith should convey, by a good and sufficient conveyance in law, unto Israel Smith, the ' son of Hill Smith, all the right and title of him the said John Smith, to the real estate of his father, Hill Smith; and provided also, that the said John Smith should release to her executors all accounts, charges and actions against her or her executors; and should release also all actions against the said Israel Smith above named; and in case the said John Smith should refuse to make such conveyance to the said Israel Smith, or to execute such releases to her executors and to the said Israel Smith, then this devise to be void, and in that case she devised the said plantation and tract of woodland to the said Israel Smith and the heirs of his body. John Smith died in the life time of the testatrix, leaving three children all under age, and without making any conveyance to Israel, of the real estate of his father and without executing any release of his pecuniary demands against the testatrix ' and Israel Smith.</p> <p>The condition of the devise to John, not having been performed, the devise to him and his issue failed, and the devise over to Israel was a good devise, and took effect.</p> <p>Where words of condition are used in connection with a devise, and there is another or subsequent devise of the same premises, on failure of the first or preceding devise; the words of condition are not strictly considered as such, or rather have not the force and operation of words of condition, and are called words oflimitation.</p> <p>When a devise is made after a preceding executory or contingent limitation, or is limited to take effect, on a certain condition annexed to any preceding estate, if that preceding or contingent estate should never arise or take effect, the remainder over will nevertheless take place, the first estate being considered only as a preceding limitation, and not as a preceding condition to give effect to a subsequent limitation.</p>

This was an ejectment brought by Minard Farley against William Craig, and a verdict rendered at the Hunterdon Circuit, before his honor Justice Rossell, in favor of the plaintiff. A rule was granted to shew cause why this verdict should not be set aside; which was -argued by

<p>If the court consent to try a cause upon a plea, without an issue, the plaintiff should be confined to the answers given to this plea in his replication, without allowing him to travel out of it and controvert the plea on a third ground not disclosed in his replication, and of which the defendant had no previous notice or information in the pleadings.</p> <p>Quere. Whether a cause is capable of trial without there is an issue joined .by the pleadings.</p>

<p>If in an action to recover damages on a building contract, the jury render a verdict for a considerable sum more (8700) than is supportable by the evidence submitted to them, without misconstruing the contract, or adopting illegal evidence, the verdict will bo set aside.</p> <p>Although some of the defendants against whom the verdict is rendered, express their satisfaction with the fairness of the trial, and their consent that the verdict should be established, this affords no legal barrier to the granting of a new trial.</p>

<p>After an indictment lias been removed by certiorari from the Oyer and Terminer to the Supreme Court, carried down to the Circuit for trial, and a verdict rendered for the defendant, the state cannot be permitted to shew by a certificate of the clerk of the Oyer and Terminer, or even by the production of an original indictment, that the return made by that court was untrue.</p> <p>Where a defendant has been acquitted by reason of a variance between ■ the instrument set forth in the transcript of the indictment, and that produced in evidence, although such variance was induced by an accidental omission of the clerk of the Oyer and Terminer, in transcribing the indictment, and certifying the same to the Supreme Court, to which it was removed by certiorari, this court will not order the defendant to be held in recognizance to appear at the Oyer and Terminer to answer the original indictment.</p>

<p>The Morris Canal Company may take materials for the construction of their canal without first obtaining an appraisement of the same.</p> <p>The proprietor is not precluded from his remedy by action, if no appraisement is made.</p> <p>But before sucb action can be sustained against the company, a claim or demand of amends should be made by tlie proprietor.</p>

<p>In. an aetion to recover damages for the non-performance of a contract for the sale of lands, a variance, in respect to the locality of the land, between the contract laid in the declaration and that proved, is fatal.</p>

The following rule was taken on behalf of Jeremiah Matthews, a creditor of Henry Warne, who had obtained a judgment in the Court of Common Pleas of Hunterdon, and issued execution thereon, viz : John Warne, Sr. Henry Warne. v. It is ordered by the court, that the administrators of John Warne, Jr., who was the plaintiff in the execution, now deceased, and that John Stiers, the plaintiff in another execution against the said Plenry Warne, issued out of this court, do…

<p>A parly who seeks to reverse a judgment of a justice, on the ground of the admission of illegal Testimony, must shew that the evidence was unlawful. This court will presume the evidence admitted to bo legal, until the contrary is shewn.</p> <p>After the jury are impannellecl in ail action of forcible entry and detainer, they are under the control of the court, who may select a constable to take charge of the jury while they deliberate.</p> <p>A charge for constable’s fees for attending on a jury in an action of forcible entry and detainer, is not a legal charge.</p> <p>Though a judgment in an action of forcible entry and detainer] is erroneous in regard to the costs, it will not be wholly roversed oil that account. Rut the judgment may bo corrected in relation to the costs and allinnod as to the residue.</p>

This was a certiorari brought by Smith to remove a judgment rendered against him in an action of forcible entry and detainer.

<p>A notice of taking a deposition, under the fifth section of the statute, (Rev. Laws, 438), must be served on the party, and not on the attorney in the cause.</p>

<p>The Court of Common Pleas, in the exercise of their common law authority, have no such control over the gaol as to discharge from it a person confined under the process of another court; nor is there any such special authority given to the court by statute. An order of the said court, made on a summary application to them, discharging a defendant from an imprisonment on an execution, will be set aside.</p>

<p>An action upon a constable’s bond is subject to limitation as to the time of prosecution.</p>

This was a writ of error to the Court of Common Pleas of the Borough of Elizabeth. Upon the return of the writ, of error the following state of the case was agreed upon by the counsel of the respective parties.

<p>If a person enters into a bond for the performance of certain matters, and .afterwards a parol agreement is made between the parties, varying tire time ol' performance, an action cannot be maintained upon the bond for the penalty, hut the plaintiff must seek his remedy upon the agreement enlarging the time of performance.</p>

On or about the 13th of November, A. L. 1826, a capias *335] ad respondendum *was issued out of the Court of Common Pleas of the county of Middlesex, at the suit of Aaron P. Wright, the plaintiff, against Richard Green, the defendant, in an action of indebitatus assumpsit, for the sum of one thousand dollars, and placed in the hands of Andrew Snowhill, Esq., then being the sheriff of the county of Middlesex, to be executed according to law; an affidavit of the cause of…

<p>The affidavit required to be filed by the party demanding an appeal, must conform to the language prescribed by the act of the legislature. An affidavit stating “ that the appeal is not for the purpose of delay, but that (the appellant) has a just and legal cause of action according to the best of bis knowledge and belief,” is not sufficient.</p>

In the term of April, 1828, the following order of the Orphans’ Court of the county of Monmouth, was obtained : It appearing to the court that Lewis Hanford, the plaintiff in this case, hath obtained a judgment against Anne Taylor, administratrix, &c., of John Taylor, dec.-; and that execution hath issued on the same; and that the same remains imsatisfied in whole for defect of personal estate to be levied on and sold; and that there is real estate of the said intestate.

An application was made to the Court of Common Pleas of the county of Sussex, at the term of February, 1827, on behalf of David Ryerson, to amerce George Mushback, late sheriff of said county, for neglect of duty; and the following evidence was offered before the said court, as appeared by a. state of the case agreed on by the parties, viz : The said David Ryerson produced .before' the court, a notice of amercement, in the usual form, in the case of David Ryerson, plaintiff,…

This was a writ of error to the Court of Common Pleas of the county of Essex, and was submitted to this court upon the following state of the case agreed upon by the' counsel of the parties, together with their briefs, viz. The-declaration was in the usual form, on a note, &c. Note made by defendant, dated April 10, 1816,/at Paterson, payable eighty days after the date thereof, to one Peter Jackson, for 304 dollars 94 cents, payable at the Newark Banking and Insurance…

<p>Two executions should not be issued at one and the samo time against several persons upon one judgment rendered on one scire facias and one recognizance.</p> <p>A recognizance creates a lien on the lands of the recognizor from the time of its acknowledgment; and the execution issued by virtue of a judgment thereon, may rightly command the taking of the lands of which the defendant was seized when the recognizance was acknowledged, instead of when judgment was rendered.</p>

This was an action of replevin brought to recover a ship of .the plaintiff, called the Maria, seized and taken by the defendant. The declaration is in the common form.

The like state of facts, except striking out altogether, the ninth clause, and to alter the tenth so as to state that at the time of the service of the ejectment, the defendant was in possession of the premises, claiming title thereto as aforesaid, under the said Joseph Haines and Isaac W. Haines, executors of the said Charles Burton adverse to the lessors •of the plaintiff.

This action was noticed for trial at the Burlington circuit, iu May term, 1828, and thereupon the pai ties agreed to the following state of the case : 1. Thomas Moore being seized of the premises in question, made and executed his last will and testament, in due form of law, to pass real and personal estate, bearing date the 30th November, 1789, and therein and thereby did devise, amongst other things, as follows, to wit: “ Item.

<p>A defendant cannot plead in bar the same matter which he has previously pleaded in abatement and which has been overruled.</p> <p>A plea in dower that tho demandant ought not to have one third part of lands because they were alienated from her husband, who ceased to havff seizin of them in his life time, and afterwards in his life time, the defendant-made great and valuable improvements thereon to the amount of $500r -•wherefore he prays judgment if the demandant ought to have the one-third pa; t, is bad, and ought to be stricken out.</p> <p>It is a general principle, that if matter set up in bar, is obviously and grossly-insufficient, idle and frivolous, the court in its discretion may strike it out; without putting the adverse party to the inconvenience or delay of a demurrer.</p>

<p>Upon an application to assess damages upon a sheriff’s bond (after a judgment rendered thereon) the sheriff will not be allowed to set off a claim for fees upon an execution which had been placed m Ills hands in favor of the applicant for the assessment, in a different case.</p> <p>A set-off cannot be allowed in such a case by the provisions of the statute concerning set-offs, nor by virtue of the extraordinary power exercised by the court in matters of sot-off.</p> <p>Besides the set-off by statute, courts of law have assumed and exercised a jurisdiction over mutual demands, deducting one from another, or satisfying one by means of the other, in analogy to the wise and beneficial provisions of the statute.</p> <p>But this extraordinary power is only exercised where the demands are fixed and ascertained by tlie admission of the parties, by judgments, or by something equivalent, and rendering equally certain ilie right and the amount.</p>

A writ of scire facias quare restitutionem non, was sued out by Garret H. Conover against William Scott, returnable to the term of September, 1828; and upon the return of the scire facias, a declaration in the following words was filed, viz: New Jersey Supreme Court. Of the Term of September, in the year of our Lord eighteen hundred and twenty-eight-New Jersey, ss.

Upon the trial of this action of ejectment before Justice-Drake, at the Warren Circuit Court, it appeared that the defendant had been in possession of the premises in question, for at least twenty-three years; that he entered lawfully under Abraham Van Campen and Moses Van Campen, the-■only evidence of whose right or title at that period, consisted in proof of their previous possession, by their tenants and in the acknowledgments of the defendant, tie had built a frame…

The defendant, Haster, as principal, and the plaintiff as surety, gave a joint promissory note for $200, payable in twelve months after date, to Samuel Brearley or order; the defendant failed to pay the note at its maturity, and soon after became insolvent, and was discharged as an insolvent debtor.